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Mandatory reporting - advice

Introduction

The Children, Youth and Families Act 2005 (CYFA) and the Family Law Act 2005 (FLA) require certain professionals to report child abuse to child protection.

Requirements under the mandatory reporting legislation

CYFA mandatory reporters

Under the CYFA (s. 182), doctors, nurses, midwives, teachers (including early childhood teachers) and principals, and police are mandatory reporters. These are the only groups currently mandated under the CYFA. Although the CYFA makes provision for a number of other professional groups to be mandated, to date, no others have been gazetted.

Under the CYFA, mandated reporters must make a report to child protection if they form a belief on reasonable grounds that a child is in need of protection from physical injury or sexual abuse.

To form a belief, the reporter must be aware of matters and hold any opinions in relation to those matters that lead them to reasonably believe a child is in need of protection (s. 186).

FLA mandatory reporters

Under the FLA (s. 67ZA), the Registrar or Deputy Registrar of the Family Court of Australia or the Family Court of Western Australia, a Registrar of the Federal Circuit Court, family consultants, family counsellors, family dispute resolution practitioners or arbitrators, and independent children's lawyers are mandatory reporters.

Under the FLA, mandated reporters must make a report to child protection if they suspect on reasonable grounds that a child has been abused or is at risk of being abused.

Reasonable grounds

A belief on reasonable grounds is formed if a reasonable person in the same position would have formed the belief on the same grounds.

For example, there may be reasonable grounds when:

a child states they have been physically or sexually abused

a child states they know someone who has been physical or sexually abused (sometimes the child may be talking about themselves)

someone who knows the child states the child has been physically or sexually abused

professional observations of the child’s behaviour or development leads the mandated professional to form a belief the child has been abused or is likely to be abused

signs of physical or sexual abuse leads to a belief the child has been abused.

Reporting

Both the CYFA and FLA require mandated reporters to report their concern when the belief is formed in the course of practicing their profession. A report must be made as soon as practicable after forming the belief, and on each occasion on which they become aware of any further reasonable grounds for the belief.

There may be times when two or more mandated professionals, for example a teacher and a principal, or a doctor and a nurse, have formed a belief about the same child on the same occasion. In this situation it is sufficient for only one of the mandated professionals make a report. The other is obliged to ensure that the report has been made and all the grounds for their own belief were included in the report made by the other person.

In the case where one mandated professional directs another mandated professional not to make a report, and one professional continues to hold the belief a child is in need of protection, then that professional is legally obliged to make a report to child protection.

Mandated reporters under the FLA must make a written report following an oral report.

Protection for reporters

If a report is made in good faith (s. 189, CYFA), then:

it does not constitute unprofessional conduct or a breach of professional ethics

the reporter cannot be held legally liable

it does not constitute a breach of s. 141 of the Health Services Act 1988 or s. 346 of the Mental Health Act 2014.

A reporter who makes a report in accordance with the legislation is not liable for the eventual outcome of any investigation.

Confidentiality for reporters

Confidentiality is provided for reporters in the CYFA (ss. 190 and 191), and prevents the disclosure of the name or any information likely to lead to the identification of a person who has made a report in accordance with the legislation except in very specific circumstances.

The identity of a reporter must remain confidential, unless:

the reporter chooses to inform the child or family of the report

the reporter consents in writing to their identity as the reporter being disclosed

a court or tribunal decides it needs this information in order to ensure the safety and wellbeing of the child

a court or tribunal decides that in the interests of justice the evidence needs to be given.

Failure to report

A mandated professional under the CYFA who fails to report a 'belief based on reasonable grounds that a child is in need of protection' because of physical or sexual abuse is liable to be prosecuted under s. 184(1), CYFA.

Considerations for good practice

At intake it is critical to ensure accurate identification of reports that require further investigation and effective diversion of reports that may be safely managed in the community.

To have reasonable grounds to believe a child is in need of protection, a mandated reporter under the CYFA should believe there is risk of significant harm as a result of physical injury or sexual abuse, and the parents cannot or will not protect the child.

Reporters do not need to prove a child is in need of protection or abuse has taken place, or to investigate their concerns.

From an ethical point of view, it is important to communicate to professionals that a child may also need protection from other types of harm and that all professionals have a duty of care to the children with whom they work, beyond the mandatory reporting requirements.

Professional education and development, ongoing liaison and consultation with key professionals and organisations within your division will assist in ensuring effective reporting of significant concerns for children’s safety and development to child protection, and referral of significant concerns for wellbeing to Child FIRST or other appropriate services.

There are state-wide protocols for police, schools and the Royal Children’s Hospital outlining responsibilities in relation to mandatory reporting and providing important information and guidance regarding ongoing relationships with these professionals. There may be divisional protocols with hospitals for example, which provide further information in relation to mandated professionals.